How to resolve the War Powers impasse—A Commentary by Bruce Ackerman ’67 and Oona Hathaway ’97

June 3, 2011

How to resolve the War Powers impasse—A Commentary by Bruce Ackerman ’67 and Oona Hathaway ’97

The following commentary was published in the UK Guardian on June 3, 2011.

How to resolve the War Powers impasse By Bruce Ackerman ’67 and Oona Hathaway ’97

Dennis Kucinich provoked a rare moment of truth in the House Wednesday. His resolution condemning the ongoing military campaign in Libya for violating the War Powers Act had been scheduled for a floor vote, with the Republican leadership reaching across the aisle to score some political points. George Bush, after all, had gained the consent of Congress before attacking Afghanistan and Iraq, but Obama's bombing campaign had gone on for 72 days without any vote in Congress – in blatant violation of the 60-day limit on unilateral presidential war-making established by the act. By allowing the Kucinich resolution onto the floor, the Republicans would be in the delightful position of watching members of the president's party attack him for betraying their trust.

But only so long as they could vote his resolution down. Kucinich not only denounced Obama's violation of the act, but also demanded a speedy end to the bombing campaign. Passing the measure could easily encourage Gaddafi to hang on to power in Tripoli in the hope that Nato's assault would soon come to an end. So, when the leadership's headcount suggested that Kucinich's resolution might actually gain a majority, it beat a quick retreat – pulling his motion off the calendar. House Republicans are presently canvassing their options.

This should be a moment for constructive action. Kucinich is right on the law but wrong about Libya. In contrast, a bipartisan Senate resolution from a group led by Senators Kerry, Lieberman and McCain is the mirror-image of Kucinich's – it is weak on the law, but right on Libya. Although it supports the bombing campaign, it is merely an advisory resolution that expresses the "sense of the Senate" and fails to provide the "specific authorisation" required by the War Powers Act to give effect to Congress's constitutional responsibility "to declare war".

The challenge is to take the best from both proposals – repudiating Obama's breach of the War Powers Act, but authorising the continuing bombing campaign for a specified period of time. Speaker John Boehner has now proposed a resolution (pdf) that makes a first step in this direction. It demands that the White House come up with an explanation, within two weeks, for why it has failed to obtain Congressional authorisation for the use of force in Libya.

Boehner will be putting his resolution up for a vote today in the House, and the Senate resolution is set to be taken up by the Senate foreign relations committee on Thursday. If they are approved, they will provide space for a more serious effort to reassert Congress's power to make the big decisions on war or peace.

This was what happened in the early 1980s, when Ronald Reagan sent American troops to Lebanon as part of an international peacekeeping force. The mission aimed to oversee the withdrawal of the Palestine Liberation Organisation, but its task became increasingly hazardous over time. When two marines were killed and others were wounded in 1983, American warships began shelling near Beirut, and Congress quickly responded by passing the first joint resolution expressly invoking the War Powers Act, authorising further American participation in the multinational force for 18 months. The legislation represented a compromise – Congress got behind the war and President Reagan signed a resolution asserting that "the War Powers Act became operative".

This grand bargain should serve as a model today. Its rapid enactment would not only reinforce the Reagan precedent, but make the Nato bombing campaign more effective. Once Obama is given the green light by Congress, he will be free to step up American involvement, if the mission requires it, adding crucial military assets that other Nato allies do not possess. So, the grand bargain will not only shape our constitutional future, but will bring our current involvement to a more rapid – and successful – conclusion.

In contrast, if members of Congress do not make good use of the present moment, the military mission will continue to be hamstrung by the president's lack of congressional support, and Congress will continue to play politics while its core constitutional power atrophies. Now is the time for all sides to pull together – for their own sake and the sake of the country.